A federal judge has ruled that the Department of Homeland Security can keep images produced by x-ray body scanners out of the public domain, in a blow to privacy group The Electronic Privacy Information Center’ s (EPIC) efforts to release more than 2000 of the images that show intimate details of airport travelers’ bodies.
Judge Ricardo Urbina ruled that the DHS does not have to comply with the Freedom of Information Act request to disclose the naked images of those who were screened at airport checkpoints, nor does the government have to release any other related materials.

The judge granted the government’s motion to conclude the lawsuit, issuing a 15-page explanation noting that the images are used to train employees and any public disclosure of such material could reveal vulnerabilities in the technology, thus threatening the agency’s security.

Such disclosures could “provide terrorists and others with increased abilities to circumvent detection by TSA and carrying threatening contraband onboard…” Urbina wrote.
The images EPIC requested “are so closely related to TSA’s rule or practice that their disclosure could reveal the rule or practice itself,” the judge added.

Citing substantial public interest in the release of the images, EPIC Lawyers John Verdi and Marc Rotenberg noted that the government has already released some scanner images into the public domain, therefore there is no justification for keeping the rest under wraps.

“The body scanner program is presently the subject of substantial debate in Congress, between international delegations, and in the media,” the attorneys wrote in papers submitted last year.

Though the ruling is technically a defeat for EPIC, the justification that the images are used for training purposes proves that the machines can indeed store and transmit images, a fact that was vehemently denied by the government during the roll out of the technology into airports across the country.

EPIC has therefore essentially achieved it’s aim of exposing how the government misled the public and then actively lied to the media on several occasions to quell a backlash against the invasive technology.

As part of the litigation, EPIC also obtained several documents related to the body scanners, which have since been released to the public. They include details relating to Procurement Specifications, Operational Requirements, traveler complaints, and vendor contracts with L3 and Rapiscan.

Though they are heavily redacted, these documents also prove that the devices can store, record, and transmit images.

“The documents show that the TSA was not honest with the public about the body scanner program,” said EPIC Counsel Ginger McCall.

In granting the motion to conclude, the court relied on a legal theory, “Exemption High (b)(2)” that is currently under review by the Supreme Court in Milner v. Dept. of Navy.
EPIC has said that it may appeal the district court’s decision.

“These images are central to the dispute about the invasiveness of the airport body scanners. That is the reason they should be disclosed to the public,” said EPIC President Marc Rotenberg.

EPIC has another pending lawsuit with the federal appeals court in Washington to completely suspend the body scanner program, describing it as invasive, unlawful and ineffective.
The group has brought claims under the Administrative Procedure Act (which requires a public review of such plans before the government can implement them), the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Fourth Amendment.

“The TSA has acted outside of its regulatory authority and with profound disregard for the statutory and constitutional rights of air travelers,” EPIC’s lawyers stated. “The agency’s rule should be set aside and further deployment of the body scanners should be suspended.”

In an answer brief, the government has claimed that the scanners are fully compliant with Constitutional requirements and that all other claims that the body imaging program is unlawful are “meritless”, “baseless” and “unfounded”.

Oral testimony in the case begins on March 10.

EPIC’s efforts have already helped spur a national grassroots movement of citizens, advocates, and lawmakers to protest, create petitions and letters and even introduce legislation to outlaw the body scanners.

Last week the group hosted a one-day public conference entitled “The Stripping of Freedom”. The forum, “devoted to an assessment of the TSA airport security procedures and recommendations for reform,” featured many notable speakers, drew a broad crowd and was covered by C-Span.

The following are videos from the conference. The first is speaker Jim Babb of activist website We Won’t Fly.com, the second is a question and answer session.